Is my villa an 'apartment'? and, formation of association.

Querist : Anonymous (Querist) 17 May 2023 This query is : Resolved
I have a Villa/Unit in a Township (400 Villas) which I have taken/bought on Sub-Lease for Rs. 50Lakhs in Howrah, West Bengal. The Builder is the Head-Lessee of the Land through a Lease from the Govt. for 999 years. The Villa/Unit is possessed by me and I exclusively possess it and occupy it, no one else has any right through any means. The front gate is connected to the Common Street Road of the enclosed Township. My villa has 2-Floors (a low-rise building, maybe).
Is my Villa an 'Apartment' as defined under The West Bengal Apartment Ownership Act, 1972??? If not, what laws/definitions cover it?
If yes, do the owners have to mandatorily form Association of Apartment Owners as mentioned in the Act to overtake maintenance responsibilities ? Or, they can create a simple Resident's Welfare Association under Societies Registration Act?
The Builder is not letting the Association form through devious means and religious hatred, and misusing the Maintenance Fees. What options do we have?
Please explain the definitions. Also, how would you handle the case and, if possible, a rough estimate of legal costs of your prescribed procedures, etc.

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Quick Summary

This discussion explores whether a villa in a West Bengal township qualifies as an 'apartment' under the West Bengal Apartment Ownership Act, 1972. It delves into the mandatory formation of an Association of Apartment Owners versus a Resident's Welfare Association, especially when a builder obstructs the process. The content also touches upon the definition of an 'apartment' as per the Act and seeks guidance on legal options and costs when dealing with builder disputes and misused maintenance fees.

T. Kalaiselvan, Advocate (Expert) 17 May 2023
When villas are built and eventually occupied, a few questions do the rounds within the new community. There are always common issues to be coordinated with the builder regarding teething troubles, maintenance, handover and several such issues. Normally, a group of owners comes together to coordinate on behalf of the community.
Though the forming of an Association or Society is voluntary in nature generally, there is a difference in so far as ownership of apartments is concerned. The difference is primarily due to the inevitable need of a body or committee to oversee the maintenance, upkeep and proper usage of common amenities and facilities which are provided for the benefit of all the apartment owners/occupants.

Dr J C Vashista (Expert) 18 May 2023
Section 3 of the West Bengal Apartment Ownership Act, 1972 defines "apartment" as:

3. In this Act, unless I the context otherwise requires,—
(a) "apartment" means part of a property having a direct exit to a
road, street or highway or lo a common area leading to such
road, street or highway which together with in undivided interest
in the common areas and Facilities forms an independent
'[residential unit, and includes a flat.]

2 Explanation.—"Flat" shall mean a separate residential unit,
whether self-contained or not, used or intended lo be used for
any of the purposes referred to in j,ub-c]auses (a)
to (i) of clause (2) of section 390 of the Calcutta Municipal Corporation Act, 1980;

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